AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 140

Unopposed MOTION for Leave to File Amici Curiae Brief by Law Scholars (Attachments: # 1 Amici Curiae Brief, # 2 Proposed Order)(Hofmann, Marcia) Modified on 11/22/2019 (ztd). Modified on 11/26/2019 (ztd).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC., and
NATIONAL COUNCIL ON MEASUREMENT
IN EDUCATION, INC.,
Plaintiff-Counterdefendants,

Case No: 1:14-cv-00857-TSC

v.
PUBLIC.RESOURCE.ORG, INC.
Defendant-Counterclaimant.

BRIEF OF LAW SCHOLARS AS AMICI CURIAE IN SUPPORT OF DEFENDANTCOUNTERCLAIMANT PUBLIC.RESOURCE.ORG’S SECOND MOTION FOR
SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFCOUNTERDEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT AND
PERMANENT INJUNCTION

Marcia Hofmann
DC Bar ID # 484136
Zeitgeist Law PC
25 Taylor Street
San Francisco, CA 94102
[phone]
[e-mail]
Christopher Bavitz
Mason Kortz
Cyberlaw Clinic, Harvard Law School
Wasserstein Hall, Suit WCC 5018
1585 Massachusetts Avenue
Cambridge, MA 02138
[phone]
[e-mail]
[e-mail]

TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................................................................................................................ i
TABLE OF AUTHORITIES .......................................................................................................... ii
INTERESTS OF AMICI ..................................................................................................................1
SUMMARY OF ARGUMENT .......................................................................................................1
ARGUMENT ...................................................................................................................................2
I. Fair Use Must Be Analyzed in Light of Copyright’s Ultimate Goal of Expanding and
Spreading Public Knowledge and Ideas. ................................................................................. 2
II. Providing the Public Access to the Laws Which Govern Them Is at the Heart of Fair
Use. .......................................................................................................................................... 5
A.

Public Access to the Content of the Law is a Public Good. ................................... 5

B.

PRO’s Purpose and Effect is to Promote Public Access to the Content of the Law.
5

C. Promoting Access to the Law Is Consistent with the Purposes of Copyright in
General and Fair Use in Particular. .................................................................................. 7
III. The Four Fair Use Factors Should Be Interpreted in the Context of Promoting Public
Knowledge. .............................................................................................................................. 8
A.

Factor One: Purpose and Character of Use. ............................................................ 9

B.

Factor Two: Nature of the Copyrighted Work. ..................................................... 12

C.

Factor Three: Amount and Substantiality Used. ................................................... 13

D.

Factor Four: Effect of Use Upon Market for or Value of Copyrighted Work. ..... 14
1.
Factor Four Is Concerned with Protecting Incentives to Create Expressive
Content, Not Factual Content. ................................................................................. 15
2.
Providing Public Access to the Law Does Not Affect a Properly Cognizable
Market. .................................................................................................................... 15

CONCLUSION..............................................................................................................................20
APPENDIX................................................................................................................................. A-1

i

TABLE OF AUTHORITIES

CASES
Am. Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994) ............................................ 15
Am. Inst. of Physics v. Schwegman, Lundberg & Woessner, P.A., No. CIV. 12-528 RHK/JJK,
2013 WL 4666330 (D. Minn. Aug. 30, 2013) .......................................................................... 11
Am. Soc’y for Testing & Materials v. Public.Resource.org, Inc., No. 13-CV-1215 (TSC), 2017
WL 473822 (D.D.C. Feb. 2, 2017) ............................................................................... 7, 8, 9, 10
Arica Inst., Inc. v. Palmer, 970 F.2d 1067 (2d Cir. 1992) ............................................................ 13
Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) .......................................................... 3
Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014) .................................. 10, 12, 13, 16
Baker v. Selden, 101 U.S. 99 (1879) ............................................................................................. 14
Banks v. Manchester, 128 U.S. 244 (1888) ........................................................................ 7, 12, 18
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) ......................... 16
Boddie v. Connecticut, 401 U.S. 371 (1971) .................................................................................. 8
Cambridge Univ. Press v. Patton, 769 F.3d 1232 (11th Cir. 2014) ............................................... 2
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) .................................................... passim
Cary v. Kearsley, 170 Eng. Rep. 679, 4 Esp. 68 (1803) ................................................................. 3
Castle Rock Entm't, Inc. v. Carol Publ’g. Grp., Inc., 150 F.3d 132 (2d Cir. 1998) ................. 5, 16
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) ................................................. 14
Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) .................................................................... 3
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) .................... 2, 11, 12
Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627 (E.D.
Pa. 2007) ................................................................................................................................... 11
Howell v. Miller, 91 F. 129 (6th Cir. 1898) .................................................................................. 18
Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) ............................................................. 12
Long v. Jordan, 29 F. Supp. 287 (N.D. Cal. 1939) ....................................................................... 17
ii

Marinello v. United States, 138 S. Ct. 1101 (2018)........................................................................ 5
McBoyle v. United States, 283 U.S. 25 (1931) ............................................................................... 5
Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295 (3d Cir. 2011)......................................... 15
Nunez v. Caribbean Int'l News Corp., 235 F.3d 18 (1st Cir. 2000).............................................. 15
Oracle Am., Inc. v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018) ............................................... 15
Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381 (6th Cir. 1996) ......................... 15
Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013) ........................................................... 15
Smith v. United States, 508 U.S. 223 (1993) ................................................................................ 13
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) .............................. passim
Stewart v. Abend, 495 U.S. 207 (1990)......................................................................................... 12
Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001)..................................... 11
Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014) .......................... 13
United States v. Burgess, No. 133066, 1987 WL 39092 (N.D. Ill. Dec. 1, 1987) .......................... 5
Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) .......................................... 5
Yates v. United States, 135 S. Ct. 1074 (2015) ............................................................................. 13
STATUTES
17 U.S.C. § 106(2) ........................................................................................................................ 17
17 U.S.C. § 107 ........................................................................................................................... 4, 9
5 U.S.C. § 552(a)(4)(A)(iii) ............................................................................................................ 8
OTHER AUTHORITIES
Articles of Incorporation, Public.Resource.Org (Apr. 13, 2007)
https://public.resource.org/public.resource.articles.html ............................................................ 6
Contact the Office of the Federal Registrar, National Archives,
https://www.archives.gov/federal-register/contact.html (last visited Nov. 8, 2019). ................. 7
Frederick Seaton Siebert, Freedom of the Press in England 1476–1776 (2d ed. 1965)............... 18
H.R. Rep. No. 94–1476 (1976) ....................................................................................................... 9
iii

Henry Farrell, Conservatives Remade American State Politics. Here’s How They Did It.
Washington Post (Aug. 29, 2019),
https://www.washingtonpost.com/politics/2019/08/29/conservatives-remade-american-statepolitics-heres-how-they-did-it/ ................................................................................................. 18
Intellectual Property Policy of ASTM International, https://www.astm.org/Itpolicy.pdf ............ 17
J.L. Austin, How to Do Things with Words (1975)...................................................................... 10
Mike McIntyre, Conservative Nonprofit Acts as a Stealth Business Lobbyist, N.Y. Times, Apr.
22, 2012..................................................................................................................................... 18
P.R. Coleman-Norton, Cicero’s Contribution to the Text of the Twelve Tables, 46 Classical J. 51
(1950) ........................................................................................................................................ 18
Pierre N. Leval, Toward A Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).................. 2, 4, 16
Public Safety Standards, Public.Resource.Org,
https://law.resource.org/pub/us/cfr/manifest.us.html (last updated Dec. 31, 2012) ................... 6
Reading Room, ASTM International, https://www.astm.org/READINGLIBRARY/ (last visited
Nov. 11, 2019) ............................................................................................................................ 7
Yon Malley, The Language of Legislation, 16 Language in Soc’y 25 (2010) ............................. 10
CONSTITUTIONAL PROVISIONS
U.S. Const., Art. I, § 8, cl. 8........................................................................................................ 2, 6

iv

INTERESTS OF AMICI 1
Amici identified in the accompanying Appendix are scholars experienced in the study and
development of copyright law. 2 Each has an interest in the proper functioning of the copyright
system and in the public’s access to laws with which they are required to comply. As set forth in
their motion for leave to file this brief, Amici write to articulate the serious damage to access to
law, copyright doctrine, and the democratic process that would arise should plaintiffs’ theory of
fair use prevail in this case.
SUMMARY OF ARGUMENT
This case touches on one of the core principles of fair use: permitting uses that further
copyright’s ultimate purpose of enhancing the public welfare by providing the public with access
to knowledge. Public.Resource.Org (“PRO”) has long been committed to enhancing public
discourse and facilitating the spread of knowledge to the public. Here, consistent with its
mission, PRO has provided the public with access to standards written by standards development
organizations (“SDOs”), which have become incorporated by reference into binding law.
Providing knowledge of the governing laws to the public is consistent with the broader
interest that copyright seeks to promote. Public knowledge of the laws is fundamental to a just,
democratic society and an informed citizenry, and recognizing that a private entity can exclude
access to the content of the laws is antithetical to the public welfare.

1

Pursuant to LCvR 7(o)(5) and Fed. R. App. P. 29(a)(4)(E), Amici hereby certify that no party
or party’s counsel authored the brief in whole or part, that no party or party’s counsel contributed
money that was intended to fund preparing or submitting the brief, and that no person other than
Amici or their counsel contributed money that was intended to fund preparing or submitting the
brief.
2
Amici Curiae Law Scholars joined this brief in their individual capacity. Titles and affiliations
are for identification purposes only.
1

In undertaking a fair use analysis, this Court should weigh all four factors in light of
PRO’s publicly beneficial purpose. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578
(1994). In this case, read in light of PRO’s strong public purpose, the four factors weigh in favor
of fair use.
ARGUMENT
I.

Fair Use Must Be Analyzed in Light of Copyright’s Ultimate Goal of Expanding and
Spreading Public Knowledge and Ideas.
The ultimate purpose of copyright is to benefit the public welfare by disseminating

knowledge and ideas to the public. See Sony Corp. of Am. v. Universal City Studios, Inc., 464
U.S. 417, 432 (1984); Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 545
(1985) (“[c]opyright is intended to increase and not to impede the harvest of knowledge”);
Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1282 (11th Cir. 2014) (promoting “the
dissemination of knowledge is consistent with the goals of copyright”). This goal is reflected in
the constitutional provision that grants Congress the authority to establish copyright law:
“Congress shall have the power . . . [t]o promote the Progress of Science and useful arts . . . by
securing for limited Times to Authors . . . the exclusive Right to their respective Writings.” U.S.
Const., Art. I, § 8, cl. 8. Copyright law is premised on the recognition that intellectual and
creative ideas are vital to a flourishing society, and it is designed to maximize the spread of those
ideas to the public. See Pierre N. Leval, Toward A Fair Use Standard, 103 Harv. L. Rev. 1105,
1109 (1990).
To fulfill its purpose, copyright law must strike a balance between incentivizing the
creation of new works and enabling the public to reap the benefits of those that already exist. Id.
at 1107-08. Typically, copyright encourages the creation of new knowledge and ideas by
providing authors an incentive in the form of a limited monopoly. See Sony, 464 U.S. at 429.

2

This monopoly is not a natural right inherent in the creation of a written work; rather, it is an
economic right bestowed “upon the ground that the welfare of the public will be served and
progress of science and useful arts will be promoted.” Id. at 429 n.10 (quoting H.R. Rep. No. 602222 (1909)).
That said, copyright law has always recognized that access to some knowledge is so
fundamental to the public benefit that it cannot be left in the control of one author. This is seen in
the rules that dictate which works can be copyrighted, such as copyright’s distinction between
ideas and expression, where the latter can be copyrighted and the former cannot. But, courts have
also recognized that blanket rules are insufficient to address all of these circumstances. Thus,
copyright law also carves out a case-by-case exception to copyright’s monopoly in the doctrine
of fair use. See Campbell, 510 U.S. at 575 (“From the infancy of copyright protection, some
opportunity for fair use of copyright materials has been thought necessary to fulfill copyright’s
very purpose.”).
For nearly three hundred years, fair use has been recognized as an essential safe harbor to
preserve the public’s ability to use and access copyrighted works in publicly beneficial ways. See
Authors Guild v. Google, Inc., 804 F.3d 202, 212 (2d Cir. 2015). See also Folsom v. Marsh, 9 F.
Cas. 342, 348-49 (C.C.D. Mass. 1841) (the first American court to explicitly recognize fair use).
As British jurist Lord Ellenborough put it, “While I think myself bound to secure every man the
enjoyment of his copyright, one must not put manacles upon science.” Cary v. Kearsley, 170
Eng. Rep. 679, 681, 4 Esp. 68, 170 (1803). Fair use ultimately serves “the cause of promoting the
broad public availability,” Sony, 464 U.S. at 432 (citation omitted) (internal quotation marks
omitted), of copyrightable material by protecting those who seek to use or spread it in the public
interest. Though the owner of a copyrighted work retains a broad interest in the reproductions of

3

that work, “some [uses] are in the public domain. Any individual may reproduce a copyrighted
work for a ‘fair use;’ the copyright owner does not possess the exclusive right to such a use.” Id.
at 433. Fair use is an integral part of the design of copyright and a necessary mechanism to
ensure that copyright’s ultimate objectives are achieved. Leval, supra at 1110.
Because the purpose of fair use is to enable uses of copyrighted works that are consistent
with the aim of disseminating knowledge, there are no “bright-line rules” for conducting a fair
use analysis. Campbell, 510 U.S. at 577. Rather, § 107 3 outlines four factors to evaluate:
1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the
copyrighted work.
17 U.S.C. § 107. The factors must be “weighed together, in light of the purposes of copyright.”
Campbell, 510 U.S. at 578. See also id. (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)
(“the fair use doctrine thus ‘permits [and requires] courts to avoid rigid application of the
copyright statute when, on occasion, it would stifle the very creativity which that law is designed
to foster.’”)). Put differently, “[t]he ultimate test of fair use . . . is whether the copyright law's
goal of promot[ing] the Progress of Science and useful Arts would be better served by allowing
the use than by preventing it.” Castle Rock Entm't, Inc. v. Carol Publ’g. Grp., Inc., 150 F.3d 132,

3

Fair use was not officially codified into law until 1976. The codification of fair use was merely
meant to “restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in
any way.” Campbell, 510 U.S. at 577, (quoting H.R. Rep. No. 94–1476, at 66 (1976), reprinted
in 1976 U.S.C.C.A.N. 5659, 5679).
4

141 (2d Cir. 1998) (quoting Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1077 (2d Cir. 1992)
(internal quotation marks omitted).
II.

Providing the Public Access to the Laws Which Govern Them Is at the Heart of Fair
Use.
This case goes to the very heart of the public interest that copyright law in general, and

fair use in particular, seeks to promote. Copyright exists to encourage the spread of knowledge
for the public benefit, see, e.g., Sony, 464 U.S. at 432, and few works are more central to the
public interest than the laws that govern us.
A. Public Access to the Content of the Law is a Public Good.
Public access to the laws is fundamental to the functioning of a democratic society. See
Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791, 799 (5th Cir. 2002) (“Citizens may
reproduce copies of the law for many purposes, not only to guide their actions but to influence
future legislation, educate their neighborhood association, or simply to amuse.”); United States v.
Burgess, No. 133066, 1987 WL 39092, at *7 (N.D. Ill. Dec. 1, 1987) (“The very nature of
republican government requires that the most important actions of Congress, the laws it enacts,
be made known to the citizenry.”). Indeed, absent fair warning, a party should not be subject to
punishment under the law. See McBoyle v. United States, 283 U.S. 25, 27 (1931) (“[I]t is
reasonable that a fair warning should be given to the world in language that the common world
will understand, of what the law intends to do if a certain line is passed.”); see also Marinello v.
United States, 138 S. Ct. 1101, 1106 (2018). This is not a matter of a copyright claimant’s
interests but of citizens’ rights.
B. PRO’s Purpose and Effect is to Promote Public Access to the Content of the
Law.
PRO has publicly noted that it provides access to SDO standards that have been
incorporated into law to “promote public education and public safety, equal justice for all, a
5

better-informed citizenry, the rule of law, world trade and world peace . . . as it is the right of all
humans to know and speak the laws that govern them.” Public Safety Standards,
Public.Resource.Org, https://law.resource.org/pub/us/cfr/manifest.us.html (last updated Dec. 31,
2012). Such notions have guided PRO since its founding. In its articles of incorporation, for
example, PRO noted that “[t]he specific purpose of this corporation is to create, architect, design,
implement, operate and maintain public works projects on the Internet for Educational,
Charitable, and Scientific Purposes to the benefit of the general public and the public interest; to
increase and diffuse knowledge about the Internet in its broadest sense.” Articles of
Incorporation, Public.Resource.Org (Apr. 13, 2007)
https://public.resource.org/public.resource.articles.html.
Indeed, plaintiffs do not suggest that PRO has any motive beyond the advancement of
public knowledge. In their brief to the D.C. Circuit Court of Appeals, for example, American
Society for Testing and Materials (“ASTM”) noted that “PRO’s purpose is to enable members of
the public to obtain copies of Plaintiffs’ Works.” Appellee Br. 34, Am. Soc’y for Testing &
Materials, et al. v. Public.Resource.Org, Inc., 896 F.3d 437 (D.C. Cir. 2018); see also ASTM’s
Mem. Supp. Summ. J. 4 (discussing PRO’s “ideological” commitment to public access to the
law). American Education Research Association (“AERA”) similarly does not suggest that PRO
has any ulterior purpose. See AERA’s Mem. Supp. Summ. J. 9. The D.C. Circuit Court of
Appeals also mentioned that “by all accounts, PRO distributed these standards for the purpose of
educating the public about the specifics of governing law.” Am. Soc’y for Testing & Materials,
896 F.3d at 448. These statements by PRO and plaintiffs in this case reinforce the notion that
PRO’s actions align with copyright’s general purpose to “promote the Progress of Science.” U.S.
Const. art. I, § 8, cl. 8. They also reaffirm the broader notion that “the law, which, binding every

6

citizen . . . [should be] free for publication to all, whether it is a declaration of unwritten law, or
an interpretation of a constitution or a statute.” Banks v. Manchester, 128 U.S. 244, 253 (1888).
C. Promoting Access to the Law Is Consistent with the Purposes of Copyright in
General and Fair Use in Particular.
PRO’s dissemination of the SDO standards weighs in favor of fair use, as it is critical for
the public to comply with laws that incorporate, but do not otherwise publish, these standards. At
present, the SDOs present several obstacles to access the standards. ASTM, for example, sells
copies of its standards for as much as $200. See Am. Soc’y for Testing & Materials v.
Public.Resource.org, Inc., No. 13-CV-1215 (TSC), 2017 WL 473822, at *4 (D.D.C. Feb. 2,
2017). ASTM offers an online reading room but restricts access to its standards by converting
them in to “read only” files. Id. This means that while individuals may “view and read ASTM
safety standards incorporated in United States regulations,” a user may not print or download
them. See Reading Room, ASTM International, https://www.astm.org/READINGLIBRARY/
(last visited Nov. 11, 2019). As many of the ASTM standards involve safety specifications for
procedures, equipment, and other materials, id., their limited availability means that users may
not be able to access them where they need them most – in the field or laboratories. Other SDOs,
such as AERA, do not offer even this modicum of access to their standards. See Am. Soc’y for
Testing & Materials, 2017 WL 473822, at *4. Moreover, some standards that have been
incorporated into law are not available online. See Def.’s Mem. Opp. Summ. J. 17. Physical
copies of the standards are on file with the Office of the Federal Register or appropriate agency,
see Am. Soc’y for Testing & Materials, 2017 WL 473822, at *3-4. However, this requires
individuals to travel to these offices during standard business hours. See Contact the Office of the
Federal Registrar, National Archives, https://www.archives.gov/federal-register/contact.html
(last visited Nov. 8, 2019). Requiring citizens to pay for copies of the standards or to take time

7

off work to travel to an agency office runs counter to notions that the law should not distinguish
between citizens based on their wealth. Indeed, in the Freedom of Information Act context,
Congress expressed a congressional policy favoring free access to information possessed by the
government that benefits the general public. See 5 U.S.C. § 552(a)(4)(A)(iii) (“Documents shall
be furnished without any charge if disclosure of the information is in the public interest . . . and
is not primarily in the commercial interest of the requester.”); cf. Boddie v. Connecticut, 401 U.S.
371 (1971) (where fundamental rights are at stake, access to courts cannot be made dependent on
ability to pay).
Limitations on access to information as vital as the content of the law are not consistent
with copyright’s purpose. Plaintiffs and other standards organizations offer insufficient access to
technical standards despite benefiting from these standards’ incorporation into law. PRO, by
contrast, seeks to expand public access to these standards by creating digital versions of hard
copy documents and making some files more accessible by transforming them in to formats more
conducive to search and “text-to speech” software. Am. Soc’y for Testing & Materials, 896 F.3d
at 444. By making the standards at issue available to the public in an accessible format, PRO has
taken a necessary step to realize the ultimate purpose of copyright: to support the advancement
of public knowledge.
III.

The Four Fair Use Factors Should Be Interpreted in the Context of Promoting
Public Knowledge.
The law classifies some uses of copyrighted material as fair use to “fulfill copyright’s

very purpose, to promote the Progress of Science and useful Arts.” Campbell, 510 U.S. at 575
(citation omitted) (internal quotation marks omitted). Expanding access to the law may not be a
typical fair use case, in part because of the background expectation that the law is not subject to
private ownership at all, but the authors of § 107 anticipated that unexpected cases would arise

8

and drafted the law accordingly. See H.R. Rep. No. 94–1476, at 66 (1976) (“[T]he endless
variety of situations and combinations of circumstances that can rise in particular cases precludes
the formulation of exact rules in the statute.”). PRO seeks to strengthen public discourse and
debate by expanding access to the laws and, as the D.C. Circuit noted, “there is reason to believe
as a matter of law that PRO’s reproduction of certain standards” is fair use. Am. Soc'y for Testing
& Materials, 896 F.3d at 448 (internal quotation marks omitted).
As described above, the purpose of copyright law is to promote the creation and
dissemination of creative and scientific works. Although that purpose requires a degree of
exclusive control by the copyright owner, it also requires that specific publicly beneficial uses be
permitted as “fair.” Section 107’s preamble lists specific uses, including “criticism, comment,
news reporting, teaching (including multiple copies for classroom use), scholarship, or research,”
17 U.S.C. § 107, but fair use extends well beyond these examples, and thus courts must weigh
four factors in determining whether a given use of a copyrighted work is fair. The Supreme
Court has made clear that the four statutory factors should not be treated in “isolation” from one
another, but rather “weighed together, in light of the purposes of copyright.” Campbell, 510 U.S.
at 578. In other words, each of the four fair use factors can and should be interpreted in a way
that supports the purpose of copyright law. In this case, a purpose-driven analysis of each factor
weighs in favor of PRO.
A. Factor One: Purpose and Character of Use.
The first factor of fair use analysis considers “the purpose and character of the use,
including whether such use is of a commercial nature or is for nonprofit educational purposes.”
17 U.S.C. § 107(1). This factor advances copyright law’s objective of disseminating public
information because it counsels in favor of fair use in nonprofit and educational circumstances. It
also advances copyright law’s objective of promoting the development of new works by
9

examining the extent to which the contested work adds something new to the copyrighted one.
See Campbell, 510 U.S. at 579. “[T]he goal of copyright, to promote science and the arts, is
generally furthered by the creation of transformative works.” Id. As the statutory text indicates,
courts examining this factor look to the transformative nature of the contested use, which
includes analysis of its overall purpose.
“[A] transformative work is one that serves a new and different function from the original
work and is not a substitute for it.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir.
2014). Moreover, as the D.C. Circuit notes, being “transformative in function or purpose” is
sufficient to meet this criterion; secondary users do not need to edit or augment the original
work. Am. Soc'y for Testing & Materials, 896 F.3d at 450 (quoting A.V. ex rel. Vanderhye v.
iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009)). In this case, the standards were
transformed from merely being the work of private drafters when they were incorporated by
reference into law. PRO’s use was a furtherance of that transformation.
When a copyrighted work is incorporated by reference into law, that new law represents a
fundamental transformation from the original work. Outside language that has been incorporated
by reference into a law becomes legally binding. See What is Incorporation by Reference?,
Office of the Federal Register Blog, https://www.federalregister.gov/reader-aids/office-of-thefederal-register-blog/2011/02/what-is-incorporation-by-reference (last visited Nov. 21, 2019).
This distinction between speech that has no legal effect and speech that does has been recognized
as one of the most profound differences in language and law. See generally J.L. Austin, How to
Do Things with Words (1975); Yon Malley, The Language of Legislation, 16 Language in Soc’y
25, 27-28 (2010) (explaining that enactment into law, uniquely, gives statutory language its
performative and coercive force). It is the force of law that makes ignoring a publicly posted “no

10

parking” sign on a public street into a traffic offense, while ignoring a physically identical
privately posted sign on the same street is not. In fair use terms, adding the force of law by
adopting standards into law works a fundamental transformation in purpose—to mandate rather
than to recommend behavior—which is evidenced by the fundamental transformation in effect. 4
As originally written, the standards represented industry leaders’ recommendations for best
practices. Those standards were transformed into law when they were made legally binding. The
objective of the original standards was to communicate recommended best practices. The
objective of the legislature was to govern behavior. The objective of the standards as used by
PRO was, in accordance with that transformation, to communicate with American citizens about
specific laws that govern them. 5
Moreover, PRO’s purpose in publishing the standards was both noncommercial and
educational in nature. Noncommercial, nonprofit uses are presumably fair. Sony, 464 U.S. at 449.
The key inquiry in such cases is “whether the user stands to profit from exploitation of the
copyrighted material without paying the customary price.” Harper & Row, 471 U.S. at 562.

4

Similarly, courts have found that reproduction of copyrighted works can constitute a
transformative use of a work when used in evidentiary or judicial proceedings. See, e.g.,
Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627, 637
(E.D. Pa. 2007); Am. Inst. of Physics v. Schwegman, Lundberg & Woessner, P.A., No. CIV. 12528 RHK/JJK, 2013 WL 4666330, at *12 (D. Minn. Aug. 30, 2013). Such use is considered
transformative because the works are used in a “narrower” context than their original “manner of
expression.” Am. Inst. of Physics, 2013 WL 4666330, at *12.
5
Courts routinely analyze the creation and distribution of a transformative work together, not
distinguishing between creation and dissemination. For the song in Campbell, for example, the
fair use analysis for radio stations that had played the parodic song would necessarily look at the
extent to which the source material song had been transformed prior to radio play, not by the act
of being played on the radio itself; otherwise, the stations would be infringing because they
wouldn’t be further transforming an already transformed work. Campbell, 510 U.S. at 578-86.
See also Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1269-71 (11th Cir. 2001)
(without separate discussion of distributor liability, finding fair use by publisher/distributor of
transformative work).
11

Here, it is conceded that PRO, which is not profit-motivated, intended to use the standards for
nonprofit and educational purposes. See supra Section II.B. PRO operates as a 501(c)(3)
nonprofit organization that exists to inform the public about the law in a cost-free way. Its
objectives are to increase the accessibility of the law and to promote democracy by ensuring that
access to the letter of the law is not limited by one’s ability to afford that access. See supra
Section II.B. This falls squarely within the dissemination purpose of copyright law.
B. Factor Two: Nature of the Copyrighted Work.
Some types of work are “closer to the core of intended copyright protection than others.”
Campbell, 510 U.S. at 586. The second factor urges courts to consider the extent to which the
works at issue “are of the type that the copyright laws value and seek to protect.” HathiTrust,
755 F.3d at 98. For example, the use of fictional works may cut against the incentives copyright
law provides to produce creative expression and is therefore less likely to be fair use. See, e.g.,
Campbell, 510 U.S. at 586; Stewart, 495 U.S. at 237-38; Harper & Row, 471 U.S. at 563.
Conversely, when it comes to works of a highly factual natural, the dissemination aspects of
copyright law are more important, given the public’s interest in access to knowledge, research,
and development. See Harper & Row, 471 U.S. at 563.
In the case at hand, the public-interest purpose of copyright law counsels in favor of
holding that PRO’s use of the standards is fair. Indeed, there is “a greater need to disseminate
factual works than works of fiction or fantasy,” Harper & Row, 471 U.S. at 563, as such
material conveys information that can be critical to the advancement of science and can increase
civic involvement. Similarly, the Supreme Court has previously held that the text of a law is so
unrelated to the purpose of copyright as to not be protected thereby. See, e.g., Banks, 128 U.S. at
253. Codes enacted into law are highly factual because they describe what actions and behaviors

12

are necessary for conformity with the law. Relatedly, the more law-like a code is, the more likely
the public interest in disseminating those standards weighs in favor of finding fair use.
In addition, the fact that the works were previously published weighs in favor of a finding
of fair use, because the works have already been voluntarily disclosed to the public. Kelly v.
Arriba Soft Corp., 336 F.3d 811, 820 (9th Cir. 2003) (“Published works are more likely to
qualify as fair use because the first appearance of the artist’s expression has already occurred.”);
Arica, 970 F.2d at 1078 (plaintiff’s work was “a published work available to the general public,”
and the second factor thus favored the defendant).
C. Factor Three: Amount and Substantiality Used.
The third factor, which examines the amount and substantiality of the work used, is
intertwined with the other three factors: “the extent of permissible copying varies with the
purpose and the character of the use.” Campbell, 510 U.S. at 586-87; see also Swatch Grp.
Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 89 (2d Cir. 2014) (“It is well established that
‘the scope of fair use is greater with respect to factual than non-factual works.’” (quoting New
Era Publ’ns Int’l, ApS v. Carol Publ’g Grp., 904 F.2d 152, 157 (2d Cir. 1990)). The test is
whether the amount copied is “reasonable in relation to the purpose of copying.” Campbell, 510
U.S. at 587.
In some cases, the use of an entire copyrighted work is acceptable. HathiTrust, 755 F.3d
at 98. In this case, copying an entire standard comports with PRO’s purpose of conveying the
content of the laws to the public. See Swatch, 756 F.3d at 84 (“[T]he need to convey information
to the public accurately may in some instances make it desirable and consonant with copyright
law for a defendant to faithfully reproduce an original work without alteration.”). Because the
standards became binding law once incorporated by reference, PRO must reproduce their
language exactly in order to accurately communicate the law. The only way to express the law is
13

by using the entire law. Each word is critical to the interpretation of a law and a simple
rephrasing can completely alter the law’s meaning. See, e.g., Yates v. United States, 135 S. Ct.
1074, 1081-83 (2015) (in which liability depended on the meaning of “tangible object” in the
Sarbanes-Oxley Act); Smith v. United States, 508 U.S. 223, 228-37 (1993) (in which liability
depended on the meaning of “use” in 18 U.S.C. §924(c)(1)).
In addition, when the standards were made freely available to the public (even in limited
ways), the relevance of this factor is diminished. Sony, 464 U.S. at 449-50 (“[W]hen one
considers … that timeshifting merely enables a viewer to see such a work which he had been
invited to witness in its entirety free of charge, the fact that the entire work is reproduced does
not have its ordinary effect of militating against a finding of fair use.”). Consistent with PRO’s
publicly beneficial purpose, factor three weighs in favor of PRO.
D. Factor Four: Effect of Use Upon Market for or Value of Copyrighted Work.
As the Supreme Court explained in Sony, a presumption of fairness is appropriate for
noncommercial, nonprofit uses. Sony, 464 U.S. at 451. The burden falls on the copyright holder
to prove that “the particular use is harmful, or that if it should become widespread, it would
adversely affect the potential market for the copyrighted work.” Id. Here, there is no cognizable
harm to the plaintiff.
SDO incentives to produce new standards fall largely outside a factor four analysis
because copyright is only concerned with incentivizing expressive content, not non-expressive
content. Because the relevant market here is the market for standards incorporated into law,
which is not a market that falls within the scope of protection of copyright, factor four favors fair
use.

14

1. Factor Four Is Concerned with Protecting Incentives to Create
Expressive Content, Not Factual Content.
Copyright law distinguishes between expressive content and non-expressive content,
incentivizing the creation of only the former. Facts and ideas cannot be copyrighted, nor does the
work required to compile this content justify copyrightability. Feist Publ’ns, Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 349-50 (1991); see also Baker v. Selden, 101 U.S. 99, 103 (1879)
(distinguishing between descriptions of a method of operation, which can be copyrighted, and
the method of operation itself, which cannot be copyrighted). While “it may seem unfair” to the
creators of factual or informational works that much of the content may be used by others
without compensation, this was an intentional part of copyright’s architecture. Feist, 499 U.S. at
349. Copyright’s primary objective is to promote the dissemination of knowledge and ideas, not
to reward the labor of authors. Id.
To the extent that PRO’s use of SDO standards incorporated into law implicates SDO’s
incentives to create new standards for further incorporation into law, it should bear little or no
weight in the factor four analysis. Incentives to produce unprotectable content are irrelevant to a
factor four analysis, as copyright does not even encourage the creation of this content in the first
instance by providing it monopoly protection.
2. Providing Public Access to the Law Does Not Affect a Properly
Cognizable Market.
In conducting a market harm analysis, courts limit their inquiry to harm to “protectable
markets.” See Campbell, 510 U.S. at 592. Campbell explicitly recognized that the market for
parodies and critical derivative works is outside the scope of the fourth factor because creators
were unlikely to license their works for those purposes. Id. More generally, Campbell has been
interpreted to confine the fourth factor’s analysis to markets that are “traditional, reasonable, or
likely to be developed.” Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 930 (2d Cir.
15

1994); 6 see also Princeton Univ. Press, 99 F.3d at 1387 (stating that a copyright holder must
have a right to copyright revenues before finding that a failure to pay a license fee equals market
harm); Leval, supra, at 1124 (stating that “[b]y definition every fair use involves some loss of
royalty revenue because the secondary user has not paid royalties”). This limitation helps further
the ultimate purpose of copyright, the development and spread of knowledge, by preventing
speculative copyright behavior that might stymie intellectual pursuits.
Where a market is not within the scope of the copyright owner’s rights, the fact that the
copyright owner has attempted to create a market for a fair use—and even secured some
licensing fees—does not count as a cognizable market effect. See Bill Graham Archives v.
Dorling Kindersley Ltd., 448 F.3d 605, 614–15 (2d Cir. 2006) (“[A] copyright holder cannot
prevent others from entering fair use markets merely by developing or licensing a market for . . .
transformative uses of its own creative work.”); Castle Rock, 150 F.3d at 146 n. 11 (“[C]opyright
owners may not preempt exploitation of transformative markets . . . by actually developing or
licensing others to develop those markets.”); Relatedly, the harm, to be cognizable, must be
related to nontransformative uses. See HathiTrust, 755 F.3d at 99 (“any economic ‘harm’ caused
by transformative uses does not count because such uses, by definition, do not serve as
substitutes for the original work”).
Here, it would be inconsistent with copyright’s ultimate purpose of promoting public
knowledge to hold that the market for standards incorporated by reference into public laws is
cognizable. The putative “market” consists of the people and institutions that are governed by

6

This definition has been adopted in numerous circuits. See, e.g., Nunez v. Caribbean Int'l News
Corp., 235 F.3d 18, 25 (1st Cir. 2000); Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295,
308 (3d Cir. 2011); Princeton Univ. Press v. Mich. Document Servs., Inc., 99 F.3d 1381, 1387
(6th Cir. 1996); Seltzer v. Green Day, Inc., 725 F.3d 1170, 1179 (9th Cir. 2013); Oracle Am.,
Inc. v. Google LLC, 886 F.3d 1179, 1208 (Fed. Cir. 2018).

16

that law, and the members of that group require copies of the law in order to understand the rules
that are being applied. In a democratic society, public knowledge of the law is so fundamental to
public interest that it would not be reasonable for a private entity to develop the “market” in a
manner consistent with the exclusive rights of a copyright holder. Cf. Campbell, 510 U.S. at 592
(explaining that copyright owners’ rights do not extend to transformative uses because of the
likelihood that they would suppress such uses if given the power to do so).
SDOs could not exercise their exclusive rights without creating absurd consequences that
undermine fundamental democratic principles. Under plaintiffs’ theory, if a legislature wanted to
amend a code, they would risk needing the SDO’s permission, because the modification might be
significant enough to constitute a derivative work, and giving the legislature the right to
reproduce the standard is not the same thing as giving it the right to create derivative works. 17
U.S.C. § 106(2); see, e.g., Intellectual Property Policy of ASTM International,
https://www.astm.org/Itpolicy.pdf (asserting the right to prohibit derivative works). Even if the
SDO conceded that legislative modifications themselves constituted fair use, it would still be
able to suppress dissemination of the modified work on the same theory offered here, and its own
published code would not reflect the law as enacted. The result would be that no one could have
meaningful access to the law governing their conduct. Enabling SDOs to maintain a private
monopoly over what should be public information is incompatible with a democratic system of
government. See Long v. Jordan, 29 F. Supp. 287, 289 (N.D. Cal. 1939) (“[P]laintiff advances a
system requiring legislation . . . and now, under his copyright, seeks to prevent the submission to
the voting power of the very legislation . . . . But a plan or system advanced for government
adoption cannot be copyrighted so as to prevent the publication of that plan or system . . . .”)

17

Such control stifles political debate and shifts power from publicly elected officials to private
hands.
Furthermore, holding that the market for public law is cognizable in copyright would
open the door for other individuals and organizations, from NGOs to lobbyists, to do the same.
The scope of legislation drafted by third parties is vast, although difficult to quantify. For
instance, the American Legislative Exchange Council (“ALEC”)—a coalition that at its peak
included hundreds of Fortune 500 companies and major advocacy groups—drafts “model bills”
that state legislators can literally copy and paste into law. Henry Farrell, Conservatives Remade
American State Politics. Here’s How They Did It. Washington Post (Aug. 29, 2019),
https://www.washingtonpost.com/politics/2019/08/29/conservatives-remade-american-statepolitics-heres-how-they-did-it/. In 2011, ALEC boasted to its members that more than one
thousand of its model bills were introduced in state legislatures, about seventeen percent of
which became binding law. Mike McIntyre, Conservative Nonprofit Acts as a Stealth Business
Lobbyist, N.Y. Times, Apr. 22, 2012, at A1. Recognizing that the market for private text
incorporated into public law is not “protectable” would address not just SDOs but the much
larger and broader category of private actors that contribute to the legislative process.
The principle of public access to the law has been a cornerstone of democracy since the
Ancient Roman era, when the laws were inscribed on bronze tablets in simple Latin and erected
in the Roman Forum for all to see. P.R. Coleman-Norton, Cicero’s Contribution to the Text of
the Twelve Tables, 46 Classical J. 51, 51 (1950). The tradition of open access to the laws was
also part of 18th century British common law tradition, where the writings and speeches of
legislatures were made publicly available as a bulwark against governmental tyranny. Frederick
Seaton Siebert, Freedom of the Press in England 1476–1776, at 356–63 (2d ed. 1965). Finally, in

18

our own nation, the courts have repeatedly reaffirmed that the public should have free access to
the law. See Banks, 128 U.S. at 253 (“The whole work done by the judges constitutes the
authentic exposition and interpretation of the law, which, binding every citizen, is free for
publication to all . . . .”); Howell v. Miller, 91 F. 129, 137 (6th Cir. 1898) (holding that “any
person desiring to publish the statutes of a state may use any copy of such statutes to be found in
any printed book”).
The properly cognizable market for codes developed by private organizations, therefore,
is limited to markets that have not been fundamentally altered by adoption of a code into law.
Where codes suggest best practices, they will be copyrightable. Where SDOs write annotations
or other explanatory material or useful guides to standards, they will be copyrightable. But where
standards become mandated by the government, and backed up by the government’s monopoly
on force, there is no “market” for copyright purposes any more than there is a “market” for a
citizen of a jurisdiction who wishes to purchase a different governing law. 7
In summary, limiting the market analysis to uses that do not involve public law is
consistent with both prior case precedent and copyright’s ultimate purpose of promoting the
public welfare. Where public law is concerned, the interest in disseminating such fundamental
knowledge must outweigh any harm to an unreasonable and non-traditional market that is
unprotected as a matter of law.

7

Citizens can leave or advocate for legislative change. But these are fundamentally different
choices than those made in copyright’s market for expressive works.
19

CONCLUSION
For the foregoing reasons, Amici respectfully request that this Court grant
Public.Resource.Org’s second motion for summary judgment and deny plaintiffs’ second motion
for summary judgment.
Respectfully submitted,

/s/ Marcia Hofmann
Marcia Hofmann
DC Bar ID # 484136
Zeitgeist Law PC
25 Taylor Street
San Francisco, CA 94102
[phone]
[e-mail]
Christopher Bavitz
Mason Kortz
Cyberlaw Clinic, Harvard Law School 8
1585 Massachusetts Avenue
Cambridge, MA 02138
[phone]
[e-mail]
[e-mail]

8

Amici thank fall 2019 Harvard Law School Cyberlaw Clinic students Katie Lin, Ari Sillman,
and Elizabeth Strassner for their valuable contributions to this brief.
20

CERTIFICATE OF COMPLIANCE

Pursuant to LCvR 7(o)(5) and Fed. R. App. P. 29(a)(4)(G), I hereby certify that:
This brief complies with the requirements of LCvR 7(o)(4) because it does not exceed 25 pages
in length.

Dated: November 22, 2019
/s/ Marcia Hofmann
Marcia Hofmann
DC Bar ID # 484136
Zeitgeist Law PC
25 Taylor Street
San Francisco, CA 94102
[phone]
[e-mail]

21

APPENDIX
Ann Bartow
Professor of Law, University of New Hampshire Franklin Pierce School of Law
Director, Franklin Pierce Center for Intellectual Property
Ann Bartow is the Director of the Franklin Pierce Center for Intellectual Property and a
Professor of Law at the University of New Hampshire Franklin Pierce School of Law. Prior to
joining the University of New Hampshire in 2015, Professor Bartow was taught at the Pace Law
School and the University of South Carolina School of Law. Professor Bartow was a Fulbright
Scholar at Tongji University in Shanghai, China during the 2011-2012 academic year. Bartow is
the current chair of the American Association of Law Schools Intellectual Property Section and
and a current member of the Advisory Board of the Electronic Privacy Information Center
(EPIC). Bartow is also a member of the American Law Institute.
Her scholarship focuses on the intersection between intellectual property laws and public
policy concerns, privacy and technology law, and feminist legal theory. At the University of
New Hampshire, Professor Bartow teaches courses about copyright law and intellectual
property.

Elizabeth Townsend Gard
Professor of Law, Tulane University Law School
Director, Tulane Center for IP Law and Culture
Elizabeth Townsend Gard is a professor of law at Tulane University Law School and is
the founder and co-director of the Tulane Center for IP Law and Culture. She also founded and
co-directs the Law/Culture/Innovation Initiative in the Social Innovation Social Entrepreneurship
Program at Tulane. Professor Townsend Gard has served as a non-resident fellow at the Center
for Internet and Society at Stanford Law School since 2004. She previously taught at Seattle

A-1

University School of Law. She is also a co-inventor of the Durationer® Copyright Experiment, a
software system that collects information about the copyright status of a work around the globe.
Professor Townsend Gard’s research focuses on copyright law, international copyright
issues, and copyright duration, among other subjects. Her writings have appeared in Vanderbilt
Law Review, DePaul Law Review, Cardozo Arts & Entertainment Law Journal, the Journal of
the Copyright Society of the U.S.A., Journal of Internet Law, Columbia Journal of Law & the
Arts and Santa Clara Computer & High Technology Law Journal.

James Gibson
Sesquicentennial Professor of Law, University of Richmond School of Law
James Gibson is the Sesquicentennial Professor of Law at Richmond School of Law.
Professor Gibson teaches and writes on copyright law, the fair use doctrine, law and technology,
and other subjects. He has published scholarship in the Yale Law Journal, Virginia Law
Review, Georgetown Law Journal, Texas Law Review, and UCLA Law Review.

Brian L. Frye
Spears-Gilbert Associate Professor of Law, University of Kentucky College of Law
Brian L. Frye is the Spears-Gilbert Associate Professor of Law at the University of
Kentucky College of Law. Prior to joining the University of Kentucky faculty in 2012, he was a
Visiting Assistant Professor of Law at Hofstra University School of Law and a litigation
associate at Sullivan & Cromwell LLP. He also clerked for Judge Andrew J. Kleinfeld of the
United States Court of Appeals for the Ninth Circuit and Justice Richard B. Sanders of the
Washington Supreme Court.

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Professor Frye's research focuses on intellectual property and charity law, especially in
relation to artists and art organizations. At the University of Kentucky, he teaches courses in
intellectual property, copyright law, and trademark law, among others.

Stacey M. Lantagne
Associate Professor of Law, The University of Mississippi School of Law
Stacey M. Lantagne is the Associate Dean for Faculty Development and an Associate
Professor of Law at the University of Mississippi School of Law. Professor Lantagne graduated
from Boston College summa cum laude with a B.A. in English and a computer science minor and
received her J.D. cum laude from Harvard Law School, where she was the co-executive editor of
the Harvard Journal of Law & Technology. After law school, she clerked for a year for Judge
Martin L.C. Feldman in the Eastern District of Louisiana. Upon completion of her clerkship,
Professor Lantagne practiced law first at Drinker Biddle & Reath in Washington, D.C., and then
at Goodwin Procter in Boston, where she practiced intellectual property litigation with a focus on
copyright and trademark matters, including a number of trade secret and deceptive advertising
cases. Prior to joining the University of Mississippi School of Law faculty, Professor Lantagne
was a Westerfield Fellow at Loyola New Orleans College of Law. Professor Lantagne is
admitted to practice in Massachusetts and the District of Columbia.

Jessica Silbey
Professor of Law and Director of Center for Law, Innovation, and Creativity, Northeastern
University School of Law
Jessica Silbey is a Professor of Law and the Faculty Director for the Center for Law,
Innovation, and Creativity at the Northeastern University School of Law. She was a 2018
Guggenheim Fellow in Law. Professor Silbey clerked for Judge Robert E. Keeton of the U.S.

A-3

District Court for the District of Massachusetts and Judge Levin H. Campbell of the U.S. Court
of Appeals for the First Circuit.
Professor Silbey’s work focuses on intellectual property, copyright law, trademark law,
constitutional law, and cultural analysis of law. She is the author of The Eureka Myth: Creators,
Innovators and Everyday Intellectual Property (Stanford University Press, 2015), and the coeditor of two books about depictions of law in media and popular culture. She has been
published in the Boston University Law Review, the Notre Dame Law Review, the Maryland Law
Review, and the Columbia Journal of Law & the Arts, among others.

Rebecca Tushnet
Frank Stanton Professor of the First Amendment, Harvard Law School
Rebecca Tushnet is the Frank Stanton Professor of the First Amendment at Harvard Law
School. Professor Tushnet specializes in copyright, trademark, and false advertising law. Her
publications include a casebook, The Law of Advertising and Marketing (2d ed., 2014), and a
chapter on transformative purpose in The Routledge Companion to Media Education, Copyright,
and Fair Use (Renee Hobbs ed., 2018). Her research has been published in the Harvard Law
Review, the Yale Law Journal, and the Texas Law Review, among other publications.

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